“Better Protecting Native Title and Indigenous Land Use Agreements: A New Class of Easement”

Abstract

Indigenous Land Use Agreements (“ILUAs”) are a legal tool created by the Commonwealth Native Title Act to facilitate the making of binding agreements between the “native title group”, including native titleholders and registered claimants, and governments, companies, and individuals. A key concern in relation to ILUAs is how to ensure their continued enforceability where the non-native title party changes, for example where holder of a mining or pastoral tenure transfers their interest to a third party. Of particular concern are Queensland ILUAs between a native title group and pastoralist where the pastoral lease is assigned to a third party. This paper examines the enforceability of terms in pastoral lease ILUAs against assignees of such leases as well as the enforceability of terms by the assignees against the native title group. A range of options, including the creation of native title easements, are canvassed in the search for a workable solution to the problem.